For months the Parti Quebecois has been insisting its proposed charter of Quebec values, the one that would ban public employees from wearing religious symbols, was perfectly constitutional. There was no danger, it maintained, of it being invalidated by the courts.

Mind you, hardly anyone outside the government agreed, and since it refused to release any of the legal opinions it had commissioned on the subject, it was hard to know whether even the PQ believed this. As the charter is certain to be challenged in court the minute it’s passed, this left the question hanging: What would the party do to avert a humiliating judicial defeat for its signature legislation?

A story in La Presse Monday appeared to provide the answer: nothing. Citing discussions “at the highest levels of the Marois government,” the story claimed the PQ, were it to to be returned with a majority, would neither amend the charter nor invoke the constitution’s notwithstanding clause to preserve it from challenge, but rather run it straight onto the rocks of judicial scrutiny: that is, invite the courts to throw it out, in hopes of provoking a fireball of public outrage — the better to help Quebecers get “ready” for a referendum.

PQ leader Pauline Marois responds to a question following the leaders’ debate Thursday, Thursday, March 20, 2014 in Montreal. THE CANADIAN PRESS/Paul Chiasson

That prompted a speedy denial from Pauline Marois, and for good reason: It would not do to let the charter, controversial but popular (among francophones), be associated with the hugely unpopular referendum. “Honestly, we never, never planned for a scenario like that,” she told reporters. In fact, she said, the party would use the notwithstanding clause to protect the charter, or at any rate it would do so “if necessary.” It would be a simple matter of adding the clause to the text.

How very Canadian: notwithstanding if necessary but not necessarily notwithstanding. Still, Marois has clarified matters, even if inadvertently. Not only do her remarks suggest the PQ knew all along that the bill it was proposing, the centrepiece of its platform, was unconstitutional, a violation of the Canadian Charter of Rights and Freedoms, but it had no intention of amending it to bring it into conformity. Either it planned to deliberately blow it up, as in La Presse’s version, or it would invoke the constitutional override, a possibility it had never conceded until now.

Which is clarifying in a different way. It reminds us of what kind of country we live in, and what kinds of things are possible in it. If the PQ wins a majority, that is, and proceeds with its plans, it will mean that in Canada, in 2014, a government can pass legislation to, in effect, purge the civil service of religious minorities — thousands of observant Jews, Muslims and Sikhs, dismissed from employment for no reason other than that they refuse to renounce the symbols of their faith — and those affected can have no recourse to the courts to protect them. And we owe this possibility to the notwithstanding clause.

This is the reality of the clause. Its defenders, and there are many, are given to describing the clause in generalities, as a “safeguard” or a “safety valve,” the last line of defence, we are led to believe, against a runaway court bent on overturning centuries of parliamentary democracy. But come down from the mountaintops to the clause as it really is, and you find a rather different story: Wherever and whenever it has been used, or proposed for use, it has been to allow real governments to deprive real and vulnerable minorities of their rights.

PQ leader Pauline Marois listens to candidate Pierre Karl Peladeau respond to a question during a news conference Friday, March 21. THE CANADIAN PRESS/Paul Chiasson

The last time its use was seriously suggested, as I recall, it was to allow the government of Alberta to escape its obligations to thousands of former residents of the province’s mental institutions, whom it had forcibly sterilized over a period of five decades. Bill 26, the Institutional Confinement and Sexual Sterilization Compensation Act, would have prevented survivors from suing the government; that it was withdrawn one day after it was introduced does not lessen the awfulness of what was contemplated.

At other times its use has been suggested to protect laws that discriminate against homosexuals, or to justify restrictions on free speech that could not otherwise be justified under the Charter of Rights’ “reasonable limits” clause. (The notwithstanding clause might better be called the unreasonable limits clause.) Most notoriously, it was invoked by the government of Quebec in 1988 to preserve the then absolute ban on English signs — this, after the Supreme Court had bent over backwards to spare the law from being struck down, even suggesting the government could insist that French be “markedly predominant”: a suggestion that was later adopted.

Of course, the notwithstanding clause only has effect for five years, after which it must be reinvoked. But this is small comfort to those involved, who will be out of a job in the meantime. And in any event, it hardly guarantees the original wrong will be righted, even then. If the PQ is elected, it will be because of, not in spite of, the charter of values. While the public seems less keen on actually firing people for their religious beliefs, who knows how they might feel five years from now? Wouldn’t all the familiar arguments be raised in defence of the status quo: We’ve settled this. Why reopen old wounds, now that social peace has been achieved?

The great irony of the PQ availing itself of the clause is that it was part of the same 1982 package of constitutional amendments the party has ever since denounced as illegitimate (though that did not prevent it from invoking the same clause routinely, as a protest, in the years immediately after patriation). What a service to the country it could perform if by invoking it now, and to such unspeakable purpose, it were to hasten its elimination.

A National Post original, Andrew Coyne's journalism career has also included positions with Maclean's, the Globe and Mail and the Southam newspaper chain. In addition, he has contributed to a wide range... read more of other publications including The New York Times, The Wall Street Journal, National Review, Time and Saturday Night. Coyne is also a long-time member of the CBC’s popular At Issue panel on The National.View author's profile